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A.H. v. New York City Dep't of Education

August 20, 2009


The opinion of the court was delivered by: Sifton, Senior Judge


Plaintiff A.H., on behalf of J.H.,*fn1 commenced this action against the New York City Department of Education ("DOE") on December 19, 2008, seeking review of the decision by the State Review Officer ("SRO") dated August 29, 2008, which affirmed a finding that the DOE complied with the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1401(9), when it offered J.H. a public school placement for the 2007-2008 school year and denied plaintiff's request for reimbursement for tuition she paid to privately educate J.H. during that year. Plaintiff seeks a judgment reversing the SRO decision, a declaratory judgment that defendant violated the IDEA, reimbursement for tuition paid, attorneys' fees, and costs. Now before the court are cross motions for summary judgment by the parties. For the reasons stated below, the motion by defendant is granted in part and denied in part, and the motion by plaintiff is granted in part and denied in part.


The following facts are taken from plaintiff's complaint and the record of the proceedings below. Disputes are noted.

J.H. is a nine year old child who has been classified by the DOE as a student with a learning disability in need of special education services due to his speech and language impairments. D. Ex. 1.*fn2 Plaintiff is the mother of J.H. When J.H. was in kindergarten, plaintiff grew concerned about his lack of academic and social progress, and decided in consultation with school officials that he should repeat kindergarten. When J.H.'s performance did not improve in his second year of kindergarten, plaintiff had him privately evaluated by Dr. Jody Brandt, who concluded that J.H. was highly distractable and could not function in large group settings. DOE convened a CSE team to evaluate J.H., which determined that he would be best served by a special needs classroom at a public school. Plaintiff in the meantime researched schools and decided that the Mary McDowell Center for Learning, a private school focusing on special needs children, was the best option for J.H., and enrolled him there for the 2007-2008 school year, for which she paid full tuition. Plaintiff subsequently rejected the public school option as inappropriate, and now seeks reimbursement for the private school tuition. At oral argument on these motions, both plaintiff and defendant stated that they had no knowledge regarding J.H.'s educational placement for the 2008-2009 school year or the upcoming 2009-2010 school year.

In order to place the factual record of this case in context, I first review the requirements of IDEA and the means by which it may be challenged, after which I describe J.H.'s school history and evaluations in more detail.

A. Individuals with Disabilities Education Act

Congress enacted the IDEA "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs... [and] to ensure that the rights of children with disabilities and parents of such children are protected." 20 U.S.C. § 1400(d)(1)(A) & (B).*fn3 In order to achieve this goal of a free appropriate public education ("FAPE") for all children with disabilities, the IDEA requires that the States comply with extensive procedural requirements and safeguards in order to receive federal funds for use in special education programs. See 20 U.S.C. § 1415. A free appropriate public education must include "special education and related services" tailored to meet the unique needs of a particular child, 20 U.S.C. § 1401(a)(18), and be "reasonably calculated to enable the child to receive educational benefits." Board of Education v. Rowley, 458 U.S. 176, 207, 73 L.Ed. 2d 690, 102 S.Ct. 3034 (1982).

The IDEA views private school as a last resort. W.S. v. Rye City Sch. Dist., 454 F.Supp.2d 134, 148 (S.D.N.Y. 2006). "To the maximum extent appropriate" children with disabilities must be educated with children who are not disabled, in the "least restrictive environment." 20 U.S.C. § 1412(a)(5). A child may only be removed into a more restrictive environment when the nature and severity of her disability is such that education in regular classes with the use of supplementary aids and services cannot be satisfactorily achieved. Id.; 34 C.F.R. 300.114(a)(2); Briggs v. Bd. of Educ., 882 F. 2d 688 (2d Cir. 1989). "This is true even if a child with disabilities might make greater academic progress in a more restrictive environment. The CSE must consider the unique benefits, academic and otherwise, that a student receives by remaining with non-disabled peers." W.S., 454 F.Supp.2d at 148.

In accordance with this regulatory framework, "[t]he centerpiece of the IDEA's education delivery system is the individualized education program, or IEP." Murphy v. Arlington Cent. Sch. Dist. Board of Educ., 297 F.3d 195, 197 (2d Cir. 2002) (internal quotations omitted). "The IEP, the result of collaborations between parents, educators, and representatives of the school district," is created annually, and "sets out the child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives." Id. 20 U.S.C. § 1414(d)(1).*fn4 New York State has assigned responsibility for developing appropriate IEPs to local Committees on Special Education ("CSEs"), the members of which are appointed by school boards or the trustees of school districts. N.Y. Educ. Law. § 4402(1)(b)(1).

Parents who are dissatisfied with a proposed IEP may request an impartial due process hearing before an Independent Hearing Officer ("hearing officer"). 20 U.S.C. § 1415(f)(1)(A); N.Y. Educ Law § 4404(1)(a). The hearing officer's decision may be appealed to the State Review Officer ("SRO"), who independently reviews the findings, after which any party may sue in either state or federal court. 20 U.S.C. §§ 1415(g), 1415(i)(1)(B). Parents who disagree with an IEP may also unilaterally enroll a child in a private school of their choice, without the consent of state or local officials, and request retroactive reimbursement. However, they do so "at their own financial risk," as reimbursement may be denied if it is later determined that the IEP was appropriate for the child. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15, 114 S.Ct. 361, 126 L.Ed. 2d 284 (1993).

B. Facts

The following sections detail J.H.'s academic and functional limitations, DOE's assessment, and J.H.'s performance at the Mary McDowell school.

1. Kindergarten

For the 2005-06 school year, J.H. attended kindergarten at a collaborative team teaching ("CTT") classroom at The Children's School, a DOE local community school. Transcript Before the DOE Impartial Hearing Officer at 90 ("Tr."). The class consisted of two teachers, a paraprofessional, and twenty-four students. D. Ex. 3. J.H. made little progress during the year, and was unable to interact with other children in the classroom and at recess. Tr. 90-91. Based on his lack of progress and his immaturity, the school suggested, and his parents agreed, that he repeat kindergarten during the 2006-07 school year in the same classroom. Tr. 91. In his second year of kindergarten, J.H. continued to make little academic or social progress. Tr. 92. He would easily lose focus in class and become "glazed over." Tr. 95-96. Although J.H. had play dates with schoolmates, during lunch and recess he would not sit with anyone. Tr. 93. His mother testified that at recess, he would walk around "kicking rocks by himself and not really interacting." Tr. 94. If the classroom was full in the morning when he entered he would "look around, kind of glazed over as if he didn't know what to do." Id. He required instructions on simple tasks like putting away his backpack when he entered the classroom. Id. Concerned, J.H.'s parents contacted his teachers in November, 2006, and stated that the program did not seem to be appropriate for J.H. Tr. 95. They arranged for J.H. to undergo a private neuropsychological evaluation with Dr. Jody Brandt and sought to review J.H.'s case with the Committee of Special Education ("CSE"). Tr. 96.

In November 2006, the DOE's Student Based Support Team at the Children's School conducted a Social History Update of J.H. at plaintiff's request. D. Exs. 2, 5. The report noted that J.H. needed remediation in all areas, required a lot of individual attention, was not reading at grade level, and that his math skills were better than his language skills. D. Ex. 2. The report also noted that J.H. was comfortable interacting with adults in the classroom and that he was very social with other students.


On March 22, 2007, J.H. was observed by a social worker from the DOE, who noted in a brief report that J.H. played by himself during group playtime and did not interact with the four other students playing with the same set of toys. D. Ex. 3.

2. Dr. Brandt's Assessment

Dr. Brandt had five one-on-one meetings with J.H. in her office and one school observation with him starting in December 2006. Tr. 99. Dr. Brandt determined that J.H. had variable concentration, was anxious, highly distractable, had difficulty transitioning from one activity to another, and needed constant redirection (to which he was responsive). Tr. 100-101. In performing the evaluation tests, J.H. had difficulty organizing his thoughts, moved at a slow pace, and required reminders to keep working. 103-104. Overall, he tested between the 4th and 10th percentile in attention, had an average memory, and was one grade behind academically. Tr. 105. He related well and had a good sense of humor, but was also immature. Tr. 105-106.

Dr. Brandt visited J.H.'s classroom and observed the class performing a group reading activity and making the transition to independent reading, as well as a library exchange and a peer group activity. Tr. 107. Dr. Brandt observed that J.H. was a "loner in the classroom" who was highly distracted and thus unable to follow what was occurring in the classroom. Id. He did not participate in group discussion or follow the dialogue, though he cooperated with group instructions. Brandt Evaluation at 3, D. Ex. 4. During independent reading, J.H. was slow to get started and continually became distracted, although he was able to return to his reading. Id. When the children were instructed to bring their library books to the library corner and exchange books, J.H. became lost on the way to the corner and did not know what to do; the teacher walked him through each step of the process. Tr. 108. J.H. became overwhelmed and confused and called his teachers by incorrect names. Tr. 108-109. J.H. was able to interact properly with peers and complete tasks once he was directed by the teacher. Id.

Dr. Brandt recommended that J.H. be placed in a small, highly-structured classroom setting that could provide individualized attention. Brandt Evaluation at 8. He would be best served by a calm and consistent school environment without noisy hallways, frequent transitions, or large groups of children. Id. She testified that this recommendation was based on her observations that J.H. required several minutes to settle in to a new environment or task and required constant prompting, redirection, and guidance. Tr. 111-112. She stated that lunch and recess were likely to be particularly overwhelming to a child as distractable as J.H. Tr. 112. She emphasized that J.H. requires not only a special education classroom, but also a special education school setting that would minimize disruptive activities (such as large lunch room settings) outside the classroom. Tr. 114. Dr. Brandt testified that J.H. would not be able to function in a lunch room setting containing 75 students,*fn5 because he would be come easily lost, worn down, and disorganized. Tr. 115. Dr. Brandt agreed that a 12 to 1 teacher to student ratio would be appropriate for J.H., but stressed that he also required a school environment outside the classroom that minimized disruptions. Tr. 120.

Plaintiff shared Dr. Brandt's report with J.H.'s classroom teacher and Dr. Scott, the school psychologist at the Children's School. Tr. 127.

3. CSE Review and Resulting IEP

On March 30, 2007 and April 13, 2007, CSE meetings were held to evaluate J.H.'s status in the school system. Tr. 6-8.*fn6 The CSE contained the following members: plaintiff, a district representative, a general education teacher who was one of J.H.'s then current teachers, the IEP coordinator at the Children's School who was certified in special education, and a school psychologist. D. SMF ¶ 12. The CSE considered the following information in creating his Individualized Education Program ("IEP"): the March 22, 2007 classroom observation, Dr. Brandt's evaluation, the social history update, and progress reports prepared by J.H.'s teachers. Tr. 12. At the meeting, the CSE team agreed that the CTT environment of the Children's School was not appropriate for J.H. When plaintiff asked the team what it was going to recommend, she was told that the group was "not in a position to recommend" any private schools, and that "the best that [could be done] was either a 12:1 or a 12:1:1." Tr. 128.*fn7 The team created an IEP recommending that J.H. be moved to a 12:1:1 program in a special class in a community school, and that he be provided speech and language therapy sessions. D. Ex. 1. The IEP noted that a special class in a specialized school would be "too restrictive," because J.H. would benefit from having non-disabled peers as role models. Id. at 18. The IEP ...

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